Not all of these are strictly what the police know that private citizens don’t, but they’re close.

Many are things I wish I could have said, but would have been in big trouble for doing so.

1.) Even though you say differently, you probably don’t know your rights.

2.) If you leave your teenager in charge of the house while you go away for the weekend, he or she will probably do something you forbade them to do. If they decide to host a beer party, your house will be wrecked.

3.) You can’t talk your way out of a ticket. Lots of people talk themselves into one.

4.) Of course it went off. What did you expect would happen when you pulled the trigger?

5.) The electronics in your radar or laser detector work no faster than those in my radar or LIDAR gun. By the time the little red light goes on, I already have your speed.

6.) We know you had more than two beers.

7.) If you grew up with guns in the house, you probably knew how to get to them, even though your parents thought they had them hidden or locked away. Don’t think your kids are any less ingenious.

8.) Arguing with me here will not go well for you. Arguments are for courtrooms, where you can make any statements and ask me any questions you want. Out here, I win all the arguments.

9.) We really don’t care how many FOP, State Sheriffs Association or 11-99 Foundation stickers you buy for your car. If you deserve the ticket, you’re getting it.

10.) Yes, you do pay my salary. Today’s obligation can be calculated by the following formula: ((Amount you pay annually in state, county, or city taxes/365) x (Fraction of budget allocated for law enforcement))/(Number of employees in my organization)

11.) I’d be happy to give you a refund. Do you have change for a penny?

12.) Most able-bodied people really can do those tests while sober.

13.) You are not the first person to see a cop and say "Take him, he did it," "I didn’t do it," or to tell your kid, "If you don’t behave, that cop will put you in jail." You probably aren’t even the first one to say that today. You have, however, caused me to mentally label you as a moron.

14.) The gun isn’t to protect you. It is to protect me.

15.) Your substance abuse problem is your business until it spills over into someone else’s life. Now, you are the problem.

16.) I don’t especially care what your race, religion, sexual preference, ethnicity, political affiliation or economic status is. I do have a bias against assholes.

17.) Can anyone here point out this person’s parents? He just asked me if I knew who his father was, and I don’t.

18.) Believe it or not, you really don’t drive better with a few drinks in you.

19.) Do unto others, but do it first.

20.) We are not armed, uniformed scribes. If someone has threatened, insulted, or otherwise vexed you in some non-criminal way and you want it put on record, write it down, take it to a notary public, and sign it in their presence. Poof, you have a record. If we could make one change to improve society, better parenting would be toward the top of the list.

21.) There probably are teenagers who can handle alcohol responsibly outside the direct supervision of an adult. We never run into them, though.

22.) Please press firmly, you are making four copies.

23.) You are in ______________. We don’t care how they do it in ___________.

24.) Yes, you very well may see me in court. I get paid overtime to be there, win or lose.

Q: What do you make of the variance between the letter of the law and reality?

Q: What do you make of matter about his wanting to view the video by himself first? I for one have had experience with police lying about me in court that was revealed only by the judge requiring each to testify without the other present.

Q: What do you make of the variance between the letter of the law and reality?

Q: What do you make of matter about his wanting to view the video by himself first? I for one have had experience with police lying about me in court that was revealed only by the judge requiring each to testify without the other present.

How do you know the search was illegal? Facts not in evidence. Technically, looking inside the vehicle is a plain view search, though it's not colloquially called a search. also, the courts have upheld opening car doors for officer safety purposes.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

On September 30, 2002, Defendant Stuart Joseph Palmer was stopped by an officer of the Tulsa Police Department for speeding in a school zone. The officer subsequently found a loaded semiautomatic handgun when conducting a protective search for weapons in the locked glove box of Defendant’s vehicle. Defendant was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C § 922(g)(1). Contending that the search of the locked glove box violated the Fourth Amendment, Defendant moved the district court to suppress the gun. After the district court denied his motion, Defendant reached a plea agreement with the government. He entered a conditional plea of guilty to the indictment, reserving his right to appeal the denial of his motion to suppress. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

“In reviewing the denial of a motion to suppress, we accept the factual findings of the district court unless they are clearly erroneous.” United States v. BoteroOspina, 71 F.3d 783, 785 (10th Cir. 1995) (en banc). The final determination whether a warrantless search was reasonable under the Fourth Amendment is a question of law to be reviewed de novo. Id. “We view the evidence on appeal in the light most favorable to the government.” Id.

I. BACKGROUND

Officer Paul Downe observed a 1991 Buick driven by Defendant traveling 46 miles per hour in a 25 mile per hour school zone at approximately 9 a.m. on September 30, 2002. Downe activated his police car’s emergency lights and siren to get Defendant’s attention. Driving behind Defendant, Downe signaled Defendant to pull over. Defendant looked back at the police car and pointed to himself, as if to ask “me?” Downe nodded and motioned for Defendant to pull over into a nearby Arby’s parking lot. Rather than turn immediately, Defendant remained in his lane of traffic, made a left turn at the next light, and accelerated. When Downe reactivated his siren, Defendant promptly crossed a lane of traffic and pulled into a NAPA parking lot.

Defendant drove through the parking lot, bypassing approximately 25 empty parking spaces. He eventually stopped on the far side of the lot. From the time Downe first signaled Defendant to pull over until the time Defendant stopped in the parking lot, Downe observed Defendant reaching behind the seat and then back toward the glove box, and leaning forward as if reaching for something under the seat.

As Downe got out of his patrol car and approached Defendant’s vehicle, he saw Defendant continue to make movements toward his feet or under the seat, and toward the passenger side and glove box. Downe observed Defendant’s hand near the glove box, which was open, and saw Defendant close the glove box.

Downe obtained Defendant’s driver’s license and returned to his patrol car to conduct a license check and prepare a citation. As he was doing this, a black pickup truck pulled up next to the patrol car. The driver told Downe that he had witnessed Defendant trying to hide something after Downe had signaled him to stop.

Downe radioed the police dispatcher to obtain backup. While waiting for backup to arrive, Downe conducted a record check on his laptop computer. It indicated that Defendant was an exconvict and warned that Defendant had been armed and dangerous. Downe continued to observe Defendant moving back and forth in his seat and leaning toward the glove box and under his seat.

Shortly thereafter, Officer Goad arrived on the scene. Downe explained to him what had happened and asked him to check the inside of Defendant’s vehicle. Downe removed Defendant from the vehicle, patted him down, and sat him in the patrol car while Goad searched the vehicle. Goad’s search revealed no weapons. Downe asked Goad to watch Defendant while he searched the vehicle himself. During his search Downe tried to open the glove box, which was locked. He removed the keys from the ignition and used them to unlock the glove box, where he found a loaded semiautomatic handgun.

II. DISCUSSION

“[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation . . . .” BoteroOspina, 71 F.3d at 787. In addition, when police officers have a reasonable suspicion based on specific and articulable facts that a properly detained driver may be dangerous and “‘may gain immediate control’” of weapons, they may conduct a weapons search of the driver’s person and the passenger compartment of the vehicle. United States v LeyvaSerrano, 127 F.3d 1280, 1283 (10th Cir. 1997) (quoting Michigan v. Long, 463 U.S. 1032, 1049 (1983)). Thus, the question in this case is whether Downe had a reasonable and articulable suspicion sufficient to justify the weapons search of the passenger compartment of the vehicle, including the glove box.

We agree with the district court that the specific facts and circumstances here gave rise to a reasonable suspicion that Defendant was dangerous and could gain control of a weapon. The observations of Officer Downe, supported by those of the passing motorist, clearly indicated that Defendant was trying to delay his encounter with the officer until he could hide something in his glove box. When the license check revealed that Defendant was an exconvict who had been considered armed and dangerous, Officer Downe had more than sufficient evidence to support a reasonable suspicion that Defendant was dangerous and was hiding a weapon in the glove box.

More problematic is whether there is reason to believe that a suspect “may

gain immediate control” of a weapon in a locked glove box, particularly when the

suspect is in the patrol car, detained by a police officer, while another officer

looks in the glove box of the suspect’s car. We turn to the relevant case law for

clarification of the quoted phrase in the present context.

The Supreme Court’s opinion in Michigan v. Long explains that (1) the fact

that the detainee is “under the control” of officers does not eliminate the risk that

he will gain access to a weapon, and (2) the time period during which the detainee

“may gain immediate control” is the entire period from the initial stop to the

detainee’s departure. The Court wrote:

The Michigan Supreme Court appeared to believe that it was not reasonable for the officers to fear that Long could injure them, because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the automobile. This reasoning is mistaken in several respects. During any investigative detention, the suspect is in the control of the officers in the sense that he may be briefly detained against his will. Just as a Terry v. Ohio, 392 U.S. 1 (1968), suspect on the street may, despite being under the brief control of a police officer, reach into his clothing and retrieve a weapon, so might a Terry suspect in Long’s position break away from police and retrieve a weapon from his automobile. In addition, if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside. Or, as here, the suspect may be permitted to reenter the vehicle before the Terry investigation is over, and again, may have access to weapons. In any event, we stress that a Terry investigation, such as the one that occurred here, involves a police investigation at close range, when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a quick decision as to how to protect himself and others from possible danger. In such circumstances, we have not required that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in a Terry encounter.

If Defendant had broken away from the officers, obtaining a gun from inside the glove box would have taken only a moment more than obtaining a gun from anywhere else within the passenger compartment. To be sure, the tasks of getting a key and unlocking the glove box would delay Defendant somewhat; but a suspect who is able to break free of officers detaining him could also seize the keys, and the suspect may have another means of entry to the glove box, such as a key that would not be detected during a proper frisk or a weapons search of the vehicle. Furthermore, Defendant would have access to the gun at the conclusion of the encounter, assuming that he was only issued a citation and not arrested.

Recognizing these dangers, the federal courts of appeals to address the matter have upheld weapons searches of locked vehicles and glove boxes. In United States v. Holifield, 956 F.2d 665, 66667 (7th Cir. 1992), officers who had stopped a car for speeding removed the occupants from the car, frisked them, examined the interior for weapons, and then removed the keys from the ignition and unlocked the glove box, where they found a pistol. Because the driver’s aggressive behavior justified the officers’ fear for their safety, the Seventh Circuit upheld the search of the locked glove box. The court relied on the above quoted passage from Long, observing that the passengers would eventually return to their car and that even before then, one or more could have broken free from the officers. Id. at 66869. Similarly, the Eighth Circuit followed Long in upholding a weapons search of a locked glove box. United States v. Brown, 913 F.2d 570, 57172 (8th Cir. 1990) (key lying on car’s front seat). Cf. United States v. Mancillas, 183 F.3d 682, 699701 (7th Cir. 1999) (locked car; follows Holifield); United States v. Woody, 55 F.3d 1257, 126970 (7th Cir. 1995) (search of locked glove box incident to arrest; cites Holifield with approval); United States v. Cheatwood, 575 F.2d 821, 825 (10th Cir. 1978) (seizure of firearms from front seat of car while defendant was standing at rear of car “was proper in relation to protection of the persons of the two police officers which necessarily involves the possibility that [the defendant] may have attempted reentry of the vehicle to obtain the weapons for use against the officers”).

Also instructive is United States v. Christian, 187 F.3d 663 (D.C. Cir. 1999), although the case did not involve a locked glove box. When two officers approached the defendant to question him as he stood by the side of a car, one saw a dagger on the front seat. Id. at 665. He asked the defendant for the car keys, unlocked the car, and retrieved the weapon. Id. The defendant challenged the search of the locked car because “the car’s interior was not within his immediate control” once the officer had taken the keys from him. Id. at 670 (internal quotation marks omitted). The court responded that the pertinent moment to assess the risk of the suspect’s gaining immediate control of a weapon was just before the officers took protective measures—that is, before the officers obtained the keys. “Otherwise, we might create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer.” Id. (internal quotation marks omitted); cf. United States v. Ross, 456 U.S. 798, 807 n.9 (1982) (in explaining why warrant need not be obtained to search impounded vehicle that had been stopped on highway with probable cause, Court wrote: “f an immediate search on the scene could be conducted, but not one at the station if the vehicle is impounded, police often simply would search the vehicle on the street—at no advantage to the occupants, yet possibly at certain cost to the police.”). The officers’ actions were therefore justified under Long because “t was not unreasonable to fear [the defendant] might lunge for the door, open it with the keys, and grab the knife.” Christian, 187 F.3d at 670. The court also noted that the defendant might have been able to enter the car even without the keys, id. at 67071, and that the defendant, if not arrested, eventually would have been permitted to reenter the car, id. at 671.

We agree with the analysis in the above cases, which also applies to this appeal. Before the two officers first arrived at Defendant’s car and asked him to step out, Officer Downe had learned of Defendant’s criminal record and dangerousness and had observed Defendant’s furtive movements while being pursued. Thus, they had sufficient justification at that point to take the car keys and open the glove box. The delay in searching the glove box—while Defendant was removed to Officer Downe’s patrol car and Officer Goad first searched the interior of Defendant’s car—did not extinguish that justification. Moreover, as noted in Long, Defendant would certainly have had access to the gun after the citation was issued and he was released to go.

We recognize that “a protective search for weapons is limited in scope, but the fact that it is a limited search does not mean that it may not encompass the glove compartment. Protective searches are only limited in the sense that the officer conducting the protective search must first have a reasonable suspicion that the suspect is dangerous and the protective search must be directed only to locations which may contain a weapon and to which the suspect may have access.” Holified, 956 F.2d at 669. Based on the information before the officers, Officer Downe was justified in searching the locked glove box as part of the protective search.

Law enforcement officials literally risk their lives each time they approach occupied vehicles during the course of investigative traffic stops. As the Supreme Court has repeatedly observed, “a significant percentage of murders of police officers occurs when officers are making traffic stops.” United States v. Robinson, 414 U.S. 218, 234 n. 5, 94 S.Ct. 467, 476 n. 5, 38 L.Ed.2d 427 (1973). In recognition of the extraordinary dangers to which officers are exposed during such encounters, the Court has consistently accorded officers wide latitude to protect their safety, authorizing them, inter alia, to routinely order both drivers and passengers to exit their vehicles during such stops and to conduct the equivalent of “frisks” of automobile interiors whenever they reasonably believe their safety might be in jeopardy.

The advent of tinted automobile windows, however, has threatened to bring to naught these essential law enforcement protections. Confronted with the grave risk that tinted windows pose to the safety of law enforcement personnel, we address herein whether the government's substantial interest in officer safety during a lawful traffic stop outweighs the intrusion on the privacy interests of the vehicle's occupants which results when, because of heavily tinted windows that prevent the interior compartment from being viewed, an officer opens a door of the vehicle in order to ensure that the vehicle's driver is unarmed and that there are no other occupants who might threaten his safety during the investigatory stop. We conclude that, perhaps generally, but at least under the circumstances of this case, the substantial government interest in officer safety which exists when law enforcement officers must approach vehicles with heavily tinted windows far outweighs any minimal privacy interest the suspect retains in the otherwise visible interior compartment of his vehicle.

I.

At approximately 9:00 a.m. on the morning of April 29, 1996, three officers from the Baltimore City Police Department-Officers Mackel, Buie and Hamel-were patrolling a high crime area in West Baltimore known for its open narcotics trafficking when they saw a late model, black Nissan Pathfinder with heavily tinted windows illegally parked in the middle of the street, effectively blocking traffic. See Md. Transportation Code Ann. §§ 21-1003(r), 27-101(a) & (b) (Michie 1996). The officers, who were armed and wearing bullet-proof vests over their uniforms because of the dangerousness of their assignment, see United States v. Stanfield, 906 F.Supp. 300, 301 (D.Md.1995), circled the block and, when the driver of the Pathfinder made no effort to move his vehicle to allow a free flow of traffic, parked their unmarked vehicle in front of the Pathfinder. Upon exiting their cruiser, the officers noticed that the Pathfinder's driver, appellant Billy Howard Stanfield, was talking to a man leaning from a second story window, whom the officers recognized as William Staten, a known drug dealer. See id.; J.A. at 151-52 (testimony of Officer Mackel); see also J.A. at 19 (Government's Memorandum of Law in Response to Defendant's Motion to Suppress Evidence).

The officers approached Stanfield's Pathfinder from both the driver and passenger sides, and, as they did so, they noticed that the front driver's side window was down, but that the front passenger side window was raised. See Stanfield, 906 F.Supp. at 301, 303. The tinting on the Pathfinder's windows was so dark that Officer Mackel, who was approaching on the passenger's side, could not see into the vehicle. See id. at 302, 303. Nor could Officers Buie and Hamel see much of the vehicle's interior during their approach from the driver's side. As a consequence of the officers' inability to see inside the vehicle as they approached, Officer Mackel opened the front passenger side door of Stanfield's vehicle in order to determine whether Stanfield was armed or had access to weapons and whether he was alone in the Pathfinder. When Officer Mackel opened the passenger door, he saw in plain view, from his vantage point entirely outside the vehicle, see id., a clear plastic bag of cocaine protruding from the mouth of a brown paper bag which was overturned on the back seat of the Pathfinder. See id. & n. 6.1 The officers arrested Stanfield, searched the Pathfinder, and discovered a nine-millimeter semi-automatic handgun, numerous empty vials, two contact pagers, and over 200 grams of cocaine. See id. at 302. Stanfield was subsequently charged with possession with intent to distribute cocaine and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1).

Prior to trial, Stanfield moved to suppress the cocaine seized from the back seat of his Pathfinder, contending that the search affected by Officer Mackel's opening of the front passenger door was unconstitutional under the Fourth Amendment and, therefore, that the cocaine discovered as a consequence of that search must be suppressed. Following an evidentiary hearing, the district court denied the motion, upholding the search on two independent grounds. First, citing Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983), the district court held that Officer Mackel's opening of the passenger side door was permissible because Stanfield did not have a legitimate expectation of privacy in the interior of his car. See Stanfield, 906 F.Supp. at 304 n. 9. Second, the district court held that, under Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), “Officer Mackel was Constitutionally permitted to open the door to determine whether there were other[ ] [occupants in the vehicle] and if any weapons were within Stanfield's immediate reach,” determinations which the district court found were otherwise virtually impossible because of the heavy window tinting. Stanfield, 906 F.Supp. at 304; see also id. at 303-04 & n. 11 (“ecause Officer Mackel was unable to see through the heavily tinted windows of the Pathfinder, he had an objectively reasonable belief that Stanfield (or a hidden passenger) was potentially dangerous.”).

Following the district court's denial of Stanfield's suppression motion, Stanfield pled guilty to one count of possession, reserving the right to appeal the district court's suppression ruling that is now before us. For the reasons that follow, we affirm.

II.

“[T]he ‘touchstone of the Fourth Amendment is reasonableness.’ ” Ohio v. Robinette, 519 U.S. 33, ----, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996) (quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991)). And, as the Court explained in Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), reasonableness “depends ‘on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.’ ” Id. at 109, 98 S.Ct. at 332 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975)). Under this balancing test, the Supreme Court has consistently approved of protective searches of persons, vehicles, and even homes, during routine and other lawful investigatory detentions, in recognition of the paramount interest in officer safety and the extraordinary risks to which law enforcement officials are exposed during such detentions.

Thus, for example, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court sanctioned the now-familiar “pat-down” search, or “frisk,” because of the “immediacy” of the government's interest in officer safety, notwithstanding its conclusion that “[e]ven a limited search of the outer clothing for weapons constitutes a severe ․ intrusion upon cherished personal security,” id. at 24-25, 88 S.Ct. at 1881-82. If an officer possesses a reasonable belief based on “specific and articulable facts” that the suspect is potentially dangerous, id. at 21, 88 S.Ct. at 1880, reasoned the Court, then the officer is justified in undertaking the “limited steps” necessary to “protect himself and others from possible danger.” Id. at 28, 88 S.Ct. at 1883.

Fifteen years later, in Long, the Court authorized what are essentially “frisks” of automobile interiors during traffic stops, see Maryland v. Buie, 494 U.S. 325, 332, 110 S.Ct. 1093, 1097, 108 L.Ed.2d 276 (1990), holding that such protective searches are “justified by the principles ․ established in Terry.” Long, 463 U.S. at 1046, 103 S.Ct. at 3479. Recognizing that all “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers,” id. at 1047, 103 S.Ct. at 3480, and accepting without discussion that an area search of a vehicle is less intrusive than the frisk of the person, the Court concluded that “the balancing required by Terry clearly weighs in favor of allowing the police to conduct an area search of the passenger compartment to uncover weapons, as long as they possess [a] reasonable belief that the suspect is potentially dangerous.” Id. at 1051, 103 S.Ct. at 3482.2

In Mimms and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the Court even adopted bright-line rules that officers may, as a matter of course, order both drivers and passengers from vehicles during routine traffic stops in order to ensure that such stops are completed without incident.

The Court in Mimms held that the “inordinate risk” that exists every time “an officer ․ approaches a person seated in an automobile,” 434 U.S. at 110, 98 S.Ct. at 333, justifies a per se rule that drivers may be ordered out of their vehicles during lawful traffic stops, whether or not there exists any particular reason under the circumstances to believe that officer safety might be in jeopardy. In contrast to the substantial state interest in safety at stake when officers must approach a stopped vehicle, the Court characterized the additional intrusion on personal liberty occasioned by requiring drivers to exit their vehicles and to move off onto the shoulder of the road as “de minimis,” “at most a mere inconvenience,” id. at 111, 98 S.Ct. at 333, and “hardly ris[ing] to the level of a ‘petty indignity,’ ” id. (quoting Terry, 392 U.S. at 17, 88 S.Ct. at 1877), reasoning that “[t]he driver is being asked to expose to view very little more ․ than is already exposed” when the driver is seated in his automobile. Id.

Finally, repeating its oft-repeated observation that the government has a “legitimate” and “weighty” interest in officer safety, the Court in Wilson recently expanded the Mimms per se rule to allow officers to order not only drivers, but all occupants, to exit vehicles and move off onto the shoulder of the road during routine traffic stops. See 519 U.S. at ----, 117 S.Ct. at 885. While acknowledging that the passengers' liberty interests implicated by orders to exit vehicles might be stronger than those of the drivers, the Court nonetheless readily concluded that these interests likewise are “minimal” and necessarily must yield to the state's interest in officer safety, finding persuasive Maryland's common-sense argument that every occupant in a vehicle “increases the possible sources of harm to the officer.” Id.

A.

1.

Notwithstanding that the Court “generally eschew bright-line rules in the Fourth Amendment context,” id. at ---- n. 1, 117 S.Ct. at 885 n. 1; see also Robinette, 519 U.S. at ----, 117 S.Ct. at 421, we believe that the Court's decisions in Mimms and Wilson in particular would support a holding that whenever, during a lawful traffic stop, officers are required to approach a vehicle with windows so heavily tinted that they are unable to view the interior of the stopped vehicle, they may, when it appears in their experienced judgment prudent to do so, open at least one of the vehicle's doors and, without crossing the plane of the vehicle, visually inspect its interior in order to ascertain whether the driver is armed, whether he has access to weapons, or whether there are other occupants of the vehicle who might pose a danger to the officers. Indeed, it seems to us that a contrary holding would not only be irreconcilable with, but arguably undermine altogether, the caselaw from the Supreme Court that was developed specifically for the purpose of protecting officer safety during what are, in today's society, frighteningly perilous encounters.

Even where the interiors of vehicles are fully visible, “roadside encounters between police and suspects are especially hazardous,” Long, 463 U.S. at 1049, 103 S.Ct. at 3481, with as many as “30% of police shootings occur [ing] when a police officer approache a suspect seated in an automobile,” Mimms, 434 U.S. at 110, 98 S.Ct. at 333; see also Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972). In fact, as the Court noted recently in Wilson, in 1994 alone, 5,762 assaults on police officers occurred during the course of traffic pursuits or stops. See Wilson, 519 U.S. at ----, 117 S.Ct. at 885 (citation omitted). Thus, “it [is]'too plain for argument' ” that the governmental interest in officer safety during traffic stops is substantial. Id. at ----, 117 S.Ct. at 885 (quoting Mimms, 434 U.S at 110, 98 S.Ct. at 333).

When, during already dangerous traffic stops, officers must approach vehicles whose occupants and interiors are blocked from view by tinted windows, the potential harm to which the officers are exposed increases exponentially, to the point, we believe, of unconscionability. Indeed, we can conceive of almost nothing more dangerous to a law enforcement officer in the context of a traffic stop than approaching an automobile whose passenger compartment is entirely hidden from the officer's view by darkly tinted windows. As the officer exits his cruiser and proceeds toward the tinted-windowed vehicle, he has no way of knowing whether the vehicle's driver is fumbling for his driver's license or reaching for a gun; he does not know whether he is about to encounter a single law-abiding citizen or to be ambushed by a car-full of armed assailants. He literally does not even know whether a weapon has been trained on him from the moment the stop was initiated. As one officer put the obvious: “If the suspect has a weapon, I might not see it until he rolls down the window. He may just shoot me through the window.” 3 If, as the Court has noted, officers face an “inordinate risk” every time they approach even a vehicle whose interior and passengers are fully visible to the officers, Mimms, 434 U.S. at 110, 98 S.Ct. at 333, the risk these officers face when they approach a vehicle with heavily tinted windows is, quite simply, intolerable. In fact, it is out of recognition of just such danger that at least twenty-eight states, including Maryland, have now enacted laws either regulating or altogether prohibiting the use of tinted windows on vehicles in their states.4

In contrast to the indisputably substantial government interest in protecting its law enforcement officials from the danger that inheres in the lawful stop of a vehicle with heavily tinted windows, the privacy and liberty interests implicated by the opening of such a vehicle's door for the limited purpose of determining whether the vehicle is occupied by one or several persons and whether the vehicle's occupants are armed or have access to weapons, are, although not unimportant, comparatively minor, and will always be so.

It is axiomatic, of course, that “

ne has a lesser expectation of privacy in a motor vehicle,” in part because “its function is transportation and it seldom serves as one's residence or as the repository of personal effects.” United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977) (quoting Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion)). Because of this, and the fact that vehicular travel is, of necessity, highly regulated, individuals traveling in vehicles “must expect that the State, in enforcing its regulations, will intrude to some extent” on their privacy. New York v. Class, 475 U.S. 106, 113, 106 S.Ct. 960, 965, 89 L.Ed.2d 81 (1986).

But, apart from the fact that there is a considerably reduced privacy interest in a vehicle's interior passenger compartment as a matter of law, the driver and other occupants of a lawfully stopped vehicle have already had their liberty curtailed. Moreover, because the driver must comply with routine requests for identification and registration, he will be required at some point during the brief detention to expose the interior compartment of his vehicle to view through at least one window, if for no other reason than to interact with the officer. Of course, when the driver lowers the window, then much if not all of the car's interior will be visible to the officer. The additional interference with the occupants' privacy interests affected by the opening of one of the vehicle's doors would seem minimal when measured against the enormous danger law enforcement officers face when they approach a vehicle with heavily tinted windows. Such an intrusion would seem considerably less than the intrusions affected by ordering the driver and passengers to exit the vehicle and to proceed to the shoulder of the road, which were held in Mimms and Wilson, respectively, to be “de minimis ” in comparison to the states' interests in protecting their law enforcement personnel under circumstances far less inherently dangerous than those existing when the stopped vehicle has heavily tinted windows. Not only does the person subjected to the limited search entailed in the opening of the vehicle door not have his entire body exposed to the view of the officers and public, he also retains his liberty interest in remaining seated in his automobile during the duration of the detention. Indeed, the actual invasion of privacy entailed in an officer's opening of the vehicle door is indistinguishable from, if not precisely the same as, that which occurs when an occupant is required to open a door to exit a vehicle pursuant to an order given under the authority of Mimms or Wilson.

2.

Even if there were reasonable alternatives to allowing officers to open the door of a vehicle with heavily tinted windows in order to ascertain whether the driver is armed and whether there are other occupants in the vehicle, we would hesitate to impose them on the law enforcement community as a matter of constitutional law. As the Supreme Court has been at pains to observe, during Terry-type stops, officers “must make ․ ‘quick decision as to how to protect [themselves] and others from possible danger’ ” at times when they are “particularly vulnerable,” and thus it has “not required that officers adopt alternate means to ensure their safety in order to avoid the intrusion involved in [such an] encounter.” Long, 463 U.S. at 1052, 103 S.Ct. at 3482 (quoting Terry, 392 U.S. at 28, 88 S.Ct. at 1883); see also id. at 1052 n. 16, 103 S.Ct. at 3482 n. 16. That is, the Court has scrupulously avoided substituting its judgment for that of law enforcement as to how best to ensure officer safety.

With that said, however, we are at a loss to identify an acceptable alternative to a rule such as that we suggest would be justified. Upon a moment's reflection, it becomes apparent that neither requiring officers (while in their cruisers or as they proceed toward the stopped vehicle) instead to order occupants to exit the vehicle nor requiring that they order that all of the vehicle's doors be opened, represents an acceptable, or even a reasonable, alternative. To require officers to order the vehicle's occupants to exit as the officers approach the stopped vehicle exposes the officers to the very danger to which we believe it is unconscionable to subject them, namely, that they might be fired upon as they approach the vehicle. As the Court observed in Terry, it is by definition “unreasonable to require that police officers take unnecessary risks in the performance of their duties.” 392 U.S. at 23, 88 S.Ct. at 1881. On the other hand, to insist that officers remain in their vehicles and order the occupants out ignores the fact that, with heavily tinted windows, the officers could never know whether all of the vehicle's occupants had exited; and, eventually, the officers would still be required under this alternative to approach a vehicle which, insofar as the officers could know, still held passengers who might be armed and dangerous. Ordering that the vehicle's doors be opened, of course, allows the vehicle's occupants legitimately to move about the vehicle in ways that would enable them to access available weapons, which represents a separate danger unto itself.

Therefore, in the end, we believe, it will be impractical, if not impossible, for law enforcement officers to neutralize the dangers to which they are exposed by virtue of heavily tinted windows. There simply do not appear to be any alternatives to the bright-line rule we suggest, which would infringe less on the residual privacy interests that drivers and passengers retain in the interior compartment of a lawfully stopped vehicle, yet still allow law enforcement officers to take that control of the situation that enables them to minimize the risk of harm to themselves and to the vehicle's occupants. Cf. Wilson, 519 U.S. at ----, 117 S.Ct. at 886 (“The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”) (quoting Michigan v. Summers, 452 U.S. 692, 703, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340 (1981)). A bright-line rule that officers could always pursue the course of opening the door of a tinted-windowed vehicle when, in their informed judgment, such an act appears necessary to protect their safety, would not render the stops of such vehicles risk-free, but it would at least reduce to an extent the enormous danger to which law enforcement authorities are exposed as a consequence of the advent of tinted windows.

B.

Even absent a Mimms /Wilson-type per se rule that officers may, in the circumstances we have described, open a vehicle's door to deter mine the number of occupants within and whether any of those occupants are armed or have access to weapons, however, Officer Mackel's opening of Stanfield's passenger door was fully authorized under the principles, if not by the direct holdings, of Terry, Long and Buie. Officer Mackel's belief that he was potentially in danger as he approached Stanfield's Pathfinder was imminently reasonable; it would be folly to suggest otherwise. Under Terry, Long and Buie, therefore, it is clear that Officer Mackel could have conducted a protective search of the entire interior compartment of Stanfield's vehicle to ensure his safety and that of his partners. It follows a fortiori that Officer Mackel's much more limited search of merely opening the Pathfinder's door was reasonable under the Fourth Amendment.

As our previous discussion suggests, we are convinced that the presence of windows so tinted that the vehicle's interior compartment is not visible is, in itself, a circumstance that would cause an officer reasonably to believe that his safety might be in danger-as the district court held. When the fact of the tinted windows on Stanfield's Pathfinder is considered together with the other circumstances informing Officer Mackel's judgment as he approached Stanfield's vehicle on the morning of April 29, 1996, we are satisfied that no reasonable officer would have failed to appreciate the potential danger confronting Officer Mackel and his partners.

First, Stanfield was, at the time of the stop, in violation of the state's traffic laws, having parked his Pathfinder in the middle of a two-way street, which was not passable by two cars simultaneously. See Stanfield, 906 F.Supp. at 301. Second, Stanfield's vehicle was stopped in the early morning in a relatively deserted area of town. See id.; J.A. at 128. Third, Stanfield's vehicle was stopped in an area of Baltimore known for its open narcotics trafficking and high crime rate. See Stanfield, 906 F.Supp. at 301; J.A. at 53. As we have often noted, where there are drugs, there are almost always guns. And, as the Supreme Court has recognized, in a high crime area, “the possibility that any given individual is armed is significant.” Buie, 494 U.S. at 334 n. 2, 110 S.Ct. at 1098 n. 2. Fourth, Stanfield was driving a vehicle which, according to the officers' testimony and the district court's factual finding, “is of the class of four wheel drive vehicles favored by drug dealers,” and is also “the preferred target of car thieves.” Stanfield, 906 F.Supp. at 301 & n. 3; J.A. at 163-64. Fifth, as the district court found, the officers did not know and could not determine, because of the tinting on the windows, “whether Stanfield was alone or whether any weapon was within arms reach of the defendant.” See Stanfield, 906 F.Supp. at 303. And, sixth, as the district court found, Stanfield had been seen by the officers conversing with William Staten, a known drug dealer, immediately prior to his encounter with Officers Mackel, Buie and Hamel. Id. at 301, 304 n. 10; J.A. at 151-52, 237 (testimony of Officer Mackel); J.A. at 19 (Government's Memorandum of Law in Response to Defendant's Motion to Suppress Evidence).5 Only the most foolhardy would not have believed that his safety was “potentially” in danger, see Long, 463 U.S. at 1051, 103 S.Ct. at 3481-82, as he approached Stanfield's Pathfinder.

There was more reason for Officer Mackel to believe that his safety might be in danger than there was in Long for Deputies Howell and Lewis to believe that their safety might be in danger. The Supreme Court there held that Howell and Lewis were “clearly justified” in their conclusion that Long might pose a danger to them were he allowed to reenter his vehicle because (1) “[t]he hour was late and the area rural,” (2) Long had been speeding and had swerved into a ditch, (3) Long had appeared to be under the influence of an intoxicant, and (4) the officers had seen a hunting knife on the floorboard of Long's car.6 463 U.S. at 1050, 103 S.Ct. at 3481. The Court readily reached this conclusion notwithstanding that the officers had already completed their detention of the suspect without incident; they knew that there were no other occupants in Long's vehicle; they also knew that there was no one else in the vicinity who could pose an immediate threat to their safety; they knew that Long did not have a weapon on his person; they had determined that, although Long was not impaired sufficiently that he could not drive, he was unlikely to initiate an assault on the officers; and they had reason to believe that Long wished to leave the scene without further involvement with the authorities.

In contrast, here, Officers Mackel, Buie and Hamel had just initiated their encounter with Stanfield, who was driving a vehicle not uncommonly associated with drug activity; they were in a high crime area known for its open drug trafficking; they had, only moments earlier, seen Stanfield talking with a known drug dealer; they did not know whether Stanfield was alone or accompanied by others; they were unable, because of the tinting of the windows, to determine whether Stanfield, or any other occupants of the vehicle, were presently armed or had ready access to weapons; and they had no reason to think Stanfield might be incapacitated in such a way as actually to reduce any threat he might pose to them.

If there was less reason for Officer Mackel to believe that he might be in danger than there was in Terry for Officer McFadden to believe he might be in danger, we are satisfied that the difference is not significant enough to warrant a different conclusion as to the reasonableness of Officer Mackel's perception of possible danger, especially given the greater vulnerability of the officers here because of the heavy tinting of the Pathfinder's windows. Officer McFadden had observed conduct by Matthew Terry and his companions that was entirely innocent in itself, although suspicious to McFadden, a trained officer, who recognized the conduct as “consistent with [an] hypothesis that the[ ] men were contemplating a daylight robbery.” Terry, 392 U.S at 28, 88 S.Ct. at 1883. Under these circumstances, observed the Court, it was reasonable for Officer McFadden to assume that one or more of the men might be armed. Here, of course, Stanfield was not engaged in entirely innocent behavior; he was actually committing an offense, albeit a relatively minor traffic offense, when he was stopped. And, it bears repeating, he was stopped in an area of the city known for its open drug trafficking, in a vehicle frequently associated with drug activity, and he was talking with a known drug dealer. A trained officer certainly would be as warranted in believing that his safety might be in danger in these circumstances as in those present in Terry. Of course, in neither instance need the officer have been “absolutely certain that the individual [was] armed; the[only question] is whether a reasonably prudent man in the circumstances would[have been] warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. at 1883. As to this question, in this case, we have no doubt whatsoever.

Although the Court in Buie did not itself resolve the ultimate issue of whether the protective sweep undertaken by the officers was justified under the Terry and Long standard, which the Court there held was applicable to the officers' sweep of Buie's home, the Court specifically analogized law enforcement's interest “in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack,” to the “immediate interest of the police officers [in Terry and Long ] in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them.” Buie, 494 U.S. at 333, 110 S.Ct. at 1097. The Court noted that an in-home arrest, unlike the typical encounter on the street, “puts the officer at the disadvantage of being on his adversary's ‘turf[,]’ [and that] [a]n ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.” Id. Even so, however, the Court was hesitant to characterize either the risk of danger during an in-home arrest or the risk of danger in an “on-the-street or roadside investigatory encounter” as the greater. Id. Based upon these overarching observations concerning the relative risks associated with in-home arrests and traffic stops, and with due regard to the relevant specifics, we are even unprepared to say that the risk of danger to Officers Mackel, Buie, and Hamel was less pronounced than was the risk to the officers in Buie.

First, and most significantly, any difference between the inherent risk existing during an in-home arrest and a lawful investigatory traffic stop due to the officers' lack of familiarity with the surroundings, was minimized, if not entirely eliminated, in this case, because the interior of Stanfield's vehicle was not visible to the officers. Through the use of heavy tinting, the driver and occupants of a vehicle effectively secure for themselves, as Stanfield did in this case, a “confined setting of unknown configuration,” forcing law enforcement authorities to confront them on their own “turf”-not unlike if they were hiding in their home. Second, some six or seven officers were present at Buie's residence to affect the arrest, whereas only three officers, were investigating Stanfield. Third, the officers in Buie had proceeded to Buie's house for the specific purpose of arresting Buie and were fully prepared for anything that might develop in connection with that assignment; unlike Officers Mackel, Buie, and Hamel, they had not simply come upon Buie unexpectedly in circumstances requiring a quick, on-the-street judgment. Fourth, the officers had already arrested Buie and had only to depart the residence and premises; at the time of their search of Buie's basement, the officers were not merely beginning their investigatory detention, as in the case sub judice, when a confrontation is more likely. Fifth, two days had lapsed since the robbery in Buie, and, although it was certainly not unreasonable to think someone (in particular, Buie's accomplice) might be hiding in the house with Buie, the officers had nothing specific to support such an inference. As the dissenting judge on the Maryland Court of Appeals said in his opinion on the remand from the Supreme Court:

From the information elicited at the suppression hearing, we do not know whether Allen [Buie's accomplice] had been arrested or was still at large. The testimony at the hearing does not give any indication that Allen was seen entering or leaving Buie's home during the three day surveillance period. In fact, there was no testimony that placed Allen at Buie's home at any time prior to Buie's arrest. Neither is there information as to what type of relationship Buie and Allen had; that is, we do not know whether they were longtime friends who spent a great deal of time together or whether the only time they were ever together was the night of the alleged robbery.

The inconclusive surveillance ․ does not help the State. It surely does not permit the inference that the police thought Allen was at Buie's house, for if they had believed that they would have brought along his arrest warrant as well as Buie's.

Buie v. Maryland, 320 Md. 696, 580 A.2d 167, 173-74 (1990) (Adkins, J., dissenting). Here, of course, while Officers Mackel, Buie, and Hamel likewise had no specific reason to believe that there were other passengers in the Pathfinder, they did know that there was someone in the vehicle (Stanfield) who, for the reasons earlier recited, potentially might be dangerous.

In contrast to the substantial state interest in having the investigatory detention necessitated by Stanfield's traffic infraction conclude without harm to its law enforcement officials, the liberty and privacy interests which Stanfield attempts to protect are, for the reasons previously discussed, notably insubstantial. Additionally, because, even according to Stanfield, the driver's side window was down when the officers approached the Pathfinder, the interior of Stanfield's car, as well as contents lying exposed on the back seat, were fully open to the view of the officers and passersby.7 Even had all of the Pathfinder's windows been raised, the undisputed evidence in the record before us is that Stanfield's tinted windows would not have prevented passersby from viewing the Pathfinder's interior under all lighting conditions. See J.A. at 88. Hence, it was only because of the mere happenstance of cloud cover that the back seat of Stanfield's car was not visible, just as in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the interior of the open glove compartment was not visible to the officer only because of the happenstance that the stop occurred at night. Therefore, as the district court alternatively held, it is questionable whether Stanfield had any privacy right at all in those portions of his interior passenger compartment relevant in this case, for there is no legitimate expectation of privacy “shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers.” Id. at 740, 103 S.Ct. at 1542.

Assuming that Stanfield did have some residual privacy interest in the interior compartment of his car, the additional intrusion on that interest that resulted from the mere opening of the passenger door was inconsequential. There is, of course, no comparison between the “severe,” “surely ․ annoying, frightening, and perhaps humiliating” pat-down of the person authorized by the Court in Terry, 392 U.S. at 24-25, 88 S.Ct. at 1881-82, and the incremental additional intrusion on Stanfield's privacy interests affected by the mere opening of his passenger door. Similarly, the protective sweep of the home authorized by the Court in Buie, pursuant to which the police were authorized to search closets, showers, attics, studies, basements, and underneath beds, was much more offensive to privacy interests than was the search here. And, obviously, the opening of the car door and perusal of the car's interior from the outside interfered less with Stanfield's privacy interest than would have a complete search of the vehicle's interior permitted under Long, which could have included visual inspection of any area in which a weapon might have been secreted.

We even believe, as explained supra, that the intrusion affected by Officer Mackel's mere opening of the passenger door of Stanfield's Pathfinder was considerably less than those intrusions authorized as a matter of course by the Court in Mimms and Wilson. The opening of the door of the Pathfinder exposed to view little more of Stanfield's body than was already exposed to view through the open driver side window and little more of the interior compartment than was visible through that same window. And, in contrast to the action that may be ordered under Mimms and Wilson, the mere opening of the door did not require Stanfield (nor would it have required any other occupants of the vehicle) to move at all.

In sum, when the state's substantial interest in ensuring that its investigatory detention of Stanfield occurred without incident to its law enforcement agents is weighed in the balance with Stanfield's privacy interests implicated by Officer Mackel's search, there can be no doubt but that the search was reasonable under the circumstances and appropriately limited in scope. What was said of Officer McFadden's actions in Terry is no less true of Officer Mackel's actions here:

We cannot say his decision [to open the passenger door to Stanfield's Pathfinder in order to determine whether there were other passengers in the vehicle or whether the driver or other had access to weapons] was the product of a volatile or inventive imagination, or was undertaken simply as an act of harassment; the record evidences the tempered act of a policeman who in the course of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and took limited steps to do so.

392 U.S. at 28, 88 S.Ct. at 1883. To hold otherwise than we do today would be “to require that police officers take unnecessary risks in the performance of their duties,” Terry, 392 U.S. at 23, 88 S.Ct. at 1881, something which, as the Supreme Court has

consistently held, the Constitution does not require.8

III.

Because Officer Mackel was engaged in a reasonable protective search when he opened Stanfield's passenger door for the limited purpose of determining whether Stanfield was armed and whether there were any other occupants within the vehicle who might pose a danger to him or his partners, and because the cocaine that Stanfield seeks to suppress was seen by Officer Mackel in plain view during the conduct of this reasonable search, the district court's denial of Stanfield's motion to suppress is affirmed.

AFFIRMED.

FOOTNOTES

1. The recited facts are those as found by the district court. A number of the material facts were vigorously disputed at the suppression hearing and, ultimately, the district court did not fully credit the testimony of either the officers or Stanfield, a fact which brings the case to us in a somewhat awkward posture. For example, the officers testified that both the front driver and passenger side windows were open, and that the cocaine was seen through the open passenger window. See Stanfield, 906 F.Supp. at 301. The district court, for reasons we find difficult to understand, rejected this testimony seemingly for the reason alone that it was fifty-nine degrees on the day in question, and therefore “it seem[ed] more likely than not that [Stanfield] would have left the passenger's side window up.” See id. at 303 n. 5. Stanfield, for his part, testified that the passenger side window was raised and that Officer Mackel opened the passenger side door, climbed inside the vehicle, and searched under the back seat to find the cocaine. See id. at 302. The district court specifically found, however, that the cocaine was in plain view once Officer Mackel opened the passenger side door and that Officer Mackel, contrary to Stanfield's contention, neither entered the vehicle nor searched under the vehicle's seat. See id. at 303 n. 6.

2. The Court expressly extendedTerry and Long in Buie, authorizing, “in conjunction with ․ in-home arrest,” 494 U.S. at 337, 110 S.Ct. at 1099, protective sweeps even of personal residences, where a reasonably prudent officer, based upon articulable facts, would believe “that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334, 110 S.Ct. at 1098 (stating that the adopted standard “is no more and no less than was required in Terry and Long, and as in those cases, we think this balance is the proper one.”). Although the Court remanded for application of this standard, it concluded that, even though the suspect sought by police had been arrested and handcuffed, and all discernible threat to the police had been neutralized, a “cursory search” of Buie's house still might be permissible on the ground that the house could “harbor[ ] other persons who are dangerous and who could unexpectedly launch an attack” on the officers. Buie, 494 U.S. at 333, 110 S.Ct. at 1098. Not surprisingly, the Maryland Court of Appeals on remand did in fact hold that the cursory search of Buie's basement was reasonable. See Buie v. Maryland, 320 Md. 696, 580 A.2d 167, 172 (1990).

3. Leef Smith, “They're Dark No More,” The Washington Post, Dec. 4, 1996, at VO4 (explaining that suspected gang members often drive around “in cars whose windows are all but blacked out,” using the cover created by the tinting to “hide illegal activities”) (statement of Officer Linda Hudson); see also, e.g., Norman Peckham, “Phoenix Now Enforcing Window Tint Law,” The Tucson Citizen, March 17, 1995, at 9E (“Heavy tint may conceal the fact that the occupant may have a weapon.”) (statement of Officer Eugene Mejia); Caroline Lemke, “In the Dark: Tinted Windows Give Cars A Cool Look, But Some Are Illegal,” The Los Angeles Times, February 13, 1992, at 2 (When a car has tinted windows “t is hard for an officer to see into [that] car. A gun could be pointed at you. It puts you in a vulnerable position.”) (statement of Officer John Marinez).

5. Although the government opposed Stanfield's suppression motion, see Government's Memorandum of Law in Response to Defendant's Motion to Suppress Evidence, J.A. at 18-40, on appeal it inexplicably conceded error and then went to quite unusual lengths to have the case decided on the briefs and without oral argument. Unwilling to reverse the district court's judgment summarily, we ordered the reluctant Assistant United States Attorney, Philip S. Jackson, to appear and argue the case. When confronted by the court with the Supreme Court authorities described above, and questioned why he was unable even to advance good-faith arguments before this court in support of the district court's judgment, Mr. Jackson represented to the court that he had confessed error solely because, in his view, there was no basis for the district court's finding that Staten was a known drug dealer, a view that was nowhere mentioned in the government's three and one-half page brief. Mr. Jackson thereafter, however, conceded that neither he nor the United States had any basis at all for challenging the district court's finding as clearly erroneous, ultimately acknowledging that if that finding were sustained, the United States had improperly confessed constitutional error.We find the district court's finding to be amply supported by the record, especially the testimony of Officer Mackel, in response to questions from Stanfield's counsel:Q: What really happened here was that you were on routine patrol, in your bullet proof vests, and you saw Mr. Stanfield talking to someone who you knew, isn't that correct?A: Once I pulled into the block, that is correct. I recognized who it was.․Q: ․ Now, when you saw Mr. Stanfield talking to someone, isn't it true that that is why you really stopped your vehicle and got out of the car and started investigating Mr. Stanfield?A: No.Q: Isn't it true that that person [Staten] you had known through previous, I guess through some previous dealings, that he might be or was a law breaker?A: Yes, I had dealings with Mr. Staten before.Q: And the real reason you got out of the car, all three of you, had nothing to do with being double parked, but you wanted to see what was up, isn't that correct?A: No, that is not true.Q: And you really, all you really had was a hunch and you just wanted to go in and see what was up?J.A. at 152.It is plain from this exchange between defendant's own counsel and Officer Mackel that defense counsel himself understood that Officer Mackel had previously had “dealings” with Staten in connection with drug transactions. Stanfield even contended to the district court that, as the officers exited their cruiser, “one of the officers then shouted up to William [Staten] and asked [Staten] whether he had stopped dealing drugs.” See J.A. at 238.It is plain that defense counsel's strategy was to develop a case that the officers had relied upon the pretext of Stanfield's traffic offense to investigate their “hunch” that, because Stanfield was talking to a known drug dealer, he might be engaged in a drug transaction, and, in fact, this was the very argument defendant advanced before the district court, see J.A. at 238 (opinion of district court) (“Stanfield argues that the officers were not attracted to him because of any traffic violation but because they were investigating drug trafficking.”). Indeed, although Stanfield (for obvious reasons) does not mention the officers' previous dealings with Staten in his submissions to this court, one of Stanfield's two assignments of error from the district court's denial of his suppression motion was that the officers acted only on this hunch. See Appellant's Br. at 2-9.It is evident, therefore, that the district court's finding that Stanfield was talking with a man known by the officers to be a drug dealer is unassailable. The Assistant United States Attorney himself, albeit in direct contradiction of his own representations before us, even represented to the district court that “[a]n officer recognized th[e] individual [to whom Stanfield was talking] as William Staten, an individual about whom [the officer] had received information indicating Staten's involvement in the distribution of controlled substances.” See Government's Memorandum of Law in Response to Defendant's Motion to Suppress Evidence, J.A. at 18, 19.

6. When listing the circumstances supporting the reasonableness of the officers' belief that they might be in danger if Long were allowed to reenter his vehicle, the Court did, as noted, mention that the officers had earlier seen the hunting knife on the floorboard of Long's automobile. It is relatively clear, however, that the knife was mentioned more in support of the court's alternative holding that the search of Long's person was also reasonable, and that the presence of the knife played little, if any, role in the Court's determination that Officers Howell and Lewis were reasonable in their belief that their safety might be at risk if Long were allowed to reenter his car, see 463 U.S. at 1050 & n. 15, 103 S.Ct. at 3481 & n. 15. When it mentioned the knife, the Court even noted that “ Long was not frisked until the officers observed that there was a large knife in the interior of the car into which Long was about to reenter,” id. at 1050, 103 S.Ct. at 3481 (emphasis added), and, as the Court had noted earlier, after observing the knife on the floorboard, “[t]he officers [had] stopped Long's progress and subjected him to a Terry protective pat-down.” Id. at 1036, 103 S.Ct. at 3474. As the Court explained, the question with respect to the search of the vehicle's passenger compartment was whether the officers acted “unreasonably in taking preventive measures to ensure that there were no other weapons [other than the knife] within Long's immediate grasp before permitting him to reenter his automobile.” Id. at 1051, 103 S.Ct. at 3482 (emphasis added).

7. This fact, of course, suggests that the district court's denial of Stanfield's suppression motion might well be sustainable on the alternative ground that the cocaine would inevitably have been discovered by Officer Buie or Officer Hamel, even had it not been discovered by Officer Mackel. Where the preponderance of evidence establishes that the information would “ultimately or inevitably” have “been discovered by means wholly independent of any constitutional violation,” the inevitable discovery exception to the exclusionary rule allows the prosecution to admit the evidence obtained through an illegal search. Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2508-09, 81 L.Ed.2d 377 (1984).

8. Stanfield also argues that the initial seizure of his vehicle was illegal because the officers stopped his vehicle in order to investigate possible drug trafficking, not, as the officers contended, because he was in violation of the state's traffic laws. See supra note 5. Because, as the Supreme Court has recently held, an officer's subjective state of mind in stopping a vehicle is irrelevant to the constitutionality of the stop, see Robinette, 519 U.S. at ----, 117 S.Ct. at 420 (“ ‘Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’ ”) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978)); Whren v. U.S., 517U.S. 806, ----, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (“[Our] cases foreclose any argument that the constitutional reasonableness of a traffic stop depends on the actual motivations of the individual officers involved.”), the district court was unquestionably correct in rejecting this argument.

LUTTIG, Circuit Judge:

Affirmed by published opinion. Judge LUTTIG wrote the opinion, in which Judges HAMILTON and WILLIAMS joined..

In McHam v. State, the supreme court addressed whether a police officer’s decision to open a passenger door because the officer feared for his safety was an impermissible search under the Fourth Amendment. The case arose in the context of a PCR appeal.

Police conducted a checkpoint on Powell Mill Road in Spartanburg County. Three police officers in marked cars were present. McHam was stopped at the checkpoint at 10:50 p.m. McHam had a passenger in his vehicle, and neither of them were wearing their seatbelts. An officer asked McHam for his license, registration, and proof of insurance. McHam provided his driver’s license, and McHam and the passenger searched for their rest of the information. The officer stated that “they were making a lot of movements in the car that he didn’t feel was consistent with looking for a registration card or a proof of insurance.” The officer walked to the passenger side of the vehicle to make sure they were not accessing a weapon; once there, the officer could not see their hands and so “for his own safety he opened up the door to watch what they were doing while they were going through the car.”

Upon opening the door, the officer saw a bag of crack; the officer pretended not to see the bag and called for backup from the other officers at the checkpoint. When the other officer arrived, he immediately grabbed the crack and arrested the occupants. The officers searched the vehicle for weapons and found a bag of cocaine, digital scales, and a large amount of money. The officers did not find any weapons.

McHam’s counsel made a motion prior to trial to suppress the drug evidence, arguing the officer’s opening of the door constituted an impermissible search under the Fourth Amendment. The trial court denied the motion. At trial, McHam’s counsel did not raise an objection, thus failing to preserve the issue for appeal. McHam was convicted.

McHam filed a PCR application, arguing trial counsel was ineffective for failing to preserve the suppression issue at trial. Trial counsel testified at the PCR hearing and admitted that he did not preserve the issue at trial. Nonetheless, the PCR court dismissed McHam’s application because trial counsel was not deficient. The PCR court assumed the court of appeals addressed the merits of his direct appeal, even though the issue was unpreserved.

McHam appealed and the supreme court granted certiorari. McHam argued that the PCR court erred in making the assumption that the court of appeals addressed the merits of an unpreserved issue. McHam also argued that trial counsel was deficient and he suffered prejudice as a result. The State argued that McHam cannot prejudice from trial counsel’s failure to preserve the issue.

On the first prong, the supreme court held that trial counsel’s failure to renew the Fourth Amendment objection was deficient performance.

On the second prong, the supreme court first stated that the court of appeals did not address the merits on direct appeal because the issue was unpreserved. The court then stated that to determine whether McHam suffered prejudice, the court needs to determine whether McHam would have prevailed on the merits if the issue was preserved.

McHam did not challenge the checkpoint; instead, he challenged only the officer’s opening of the passenger door. The court held that an officer’s opening of a door to an occupied vehicle constitutes a search under the Fourth Amendment because “it enables the officer to observe portions of the interior of the vehicle that would not otherwise be readily visible to those who are outside the vehicle.” The court then examined whether the search was justified by an exception to the warrant requirement. The court held “as a general principle that officer safety can justify the opening of a door to an occupied vehicle under reasonable circumstances.” The court stated the reasonable circumstances were “officer safety was a legitimate concern, given the dimly-lit conditions at the scene of the stop, the presence of more than one occupant in the vehicle, the fact that the officer was the only one approaching the vehicle at that moment, and the actions of the occupants.”

Since the court held McHam could not prevail on the merits of the appeal, he did not suffer prejudice, and as a result, the court affirmed the dismissal of his application.

A police officer does not need probable cause to stop a car or a pedestrian and investigate potential crime. According to the U.S. Supreme Court, a police officer may initiate a temporary stop, a level of intrusion short of an arrest, if the officer can articulate a reasonable suspicion that the suspect has committed a crime or is about to commit a crime.1 This is commonly known as a Terry stop. Further, if the officer can articulate a reasonable basis for suspecting that the subject might be armed, he can pat down the outer clothing of the suspect in a limited search for weapons. This is commonly referred to as a Terry frisk.

The Terry rule has developed quite a bit since 1968, but some aspects remain murky. In particular, if the suspect refuses to give his name or any identifiers, may an officer arrest the suspect? According to the Supreme Court, the police may arrest for failure to identify if state law criminalizes such behavior.

Officers conducting a lawful Terry stop may take steps reasonably necessary to protect their personal safety, check for identification, and maintain the status quo.2 Occasionally a suspect will refuse to identify himself. Pursuant to the Supreme Court’s opinion in Hiibel v. Sixth Judicial District Ct. of Nev., a state law requiring a subject to disclose his name during a Terry stop is consistent with the Fourth Amendment’s ban on unreasonable search and seizure:

Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere.3

Such a statute does not implicate the subject’s Fifth Amendment right to avoid self-incrimination, as simple disclosure of one’s name presents no reasonable danger of incrimination. But the Court clearly limited the application of this new rule by also noting that an officer may not arrest a suspect for failing to identify himself if the identification request is not reasonably related to the circumstances justifying the stop. The question is, is the request for identity a commonsense inquiry or an effort to obtain an arrest for failure to identify after a Terry stop yielded insufficient evidence?

Furthermore, a state may not make it a crime to refuse to provide identification on demand in the absence of reasonable suspicion.4 The Court has also held that a requirement that a detainee give “credible and reliable” identification information to the police upon request is too vague to be a criminal offense.5

In short, if the state has a law requiring suspects to identify themselves when asked to do so during a valid stop or detention, the U.S. Constitution will not bar arrest and prosecution for failure to do so. It is not clear what officers may do if their jurisdiction does not have a law against failing to identify oneself.

Failure to Identify and Traffic Stops

The U.S. Court of Appeals for the Tenth Circuit has held that, in the context of traffic stops based on reasonable suspicion alone, a “motorist may be detained for a short period while the officer runs a background check to see if there are any outstanding warrants or criminal history pertaining to the motorist even though the purpose of the stop had nothing to do with such prior criminal history.”6 Several other circuits have come to the same conclusion.7

The Tenth Circuit addressed the issue later in United States v. Villagrana-Flores: “We explained in Holt that ‘the justification for detaining a motorist to obtain a criminal history check is, in part, officer safety’ because ‘by determining whether a detained motorist has a criminal record or outstanding warrants, an officer will be better apprized of whether the detained motorist might engage in violent activity during the stop.’” As long as the detention is for a short period, “the government’s strong interest in officer safety outweighs the motorist’s interests.”8

Failure to Identify and Pedestrians

Officer safety is just as strongly implicated where the individual being detained for a short period of time is on foot rather than in an automobile. An officer detaining a pedestrian has an equally strong interest in knowing whether that individual has a violent past or is currently wanted on outstanding warrants. The citizen’s interest, on the other hand, is no more robust merely because a short detention occurs while traversing on foot.

Moreover, permitting a warrants check during a Terry stop on the street also “promotes the strong government interest in solving crimes and bringing offenders to justice.”9 Indeed, an identity’s utility in “inform[ing] an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder,”10 would be nonexistent without the ability to use the identity to run a criminal background check.

What Does It Mean to Criminalize the Conduct?

It is up to each state or municipality to criminalize a suspect’s failure to reveal his or her identity. Such laws may not make it a crime to fail to reveal one’s name during a consensual encounter; to avoid violating the Fourth Amendment there must, at a minimum, be reasonable suspicion of crime afoot by the subject.11

Further, the stop-and-identify law must not be “vague,” according to the Supreme Court. In Kolender it found a California statute unconstitutionally vague because it required the subject to produce “credible and reliable” identification that carried a “reasonable assurance” of reliability, and left it up to the officer to determine what “credible and reliable” and “reasonable assurance” are.12 Acceptable statutes simply require disclosure and leave it to the subject to decide how to comply.13

If the name given by the subject turns out to be false, the subject has likely violated another law, giving the officer probable cause to arrest. The Nevada statute in question in the Hiibel opinion treats failure to disclose as a form of obstructing the discharge of an officer’s official duties. It is quite likely that the charge of obstructing official duty would be untenable for failure to identify in a Terry stop without a law similar to Nevada’s requiring a subject to identify themselves. In Texas a person is not guilty of failure to identify unless the person is already under arrest and refuses to give his name and other information. Further, an act criminally interfering with public duties may not consist of speech only. 14

What If a State Does Not Criminalize Refusal to Identify?

An interesting question arises when state law does not make it a crime to refuse to identify oneself but does clearly allow the police to temporarily detain the suspect and determine his identity. The decision in Hiibel suggests that Terry allows officers to ask for identification as long as the request for identification is reasonably related in scope to the circumstances that justified the initial stop.15 Also, Terry may permit an officer to establish or negate a suspect’s connection to a crime by compelling the suspect to submit to fingerprinting.16

In Hayes the police were investigating a string of burglary-rapes and had recovered latent prints from one of the crime scenes and herringbone-patterned shoe prints.17 Hayes was one of 40 suspects interviewed and came to be a principal suspect. Hayes refused to accompany police officers to the station for fingerprinting until threatened with arrest for refusing to comply. The police also seized from Hayes’s house a pair of sneakers with a herringbone tread pattern. Hayes’s prints matched the latent prints found at the scene.

The U.S. Supreme Court ruled that Hayes’s fingerprints were illegally obtained and inadmissible. The Court endorsed the practice of fingerprinting a subject when there is reasonable suspicion that the prints will establish or negate the person’s involvement in the crime being investigated. Further, the Court made it very clear that, under certain circumstances, the judiciary may authorize the seizure of a person on less than probable cause, and removal to the police station, for the purpose of fingerprinting. This is not to suggest that drivers, passengers, or pedestrians who refuse to identify themselves can be taken to the station for fingerprinting in all cases, only that it is possible in some cases.

Police Not Penalized for Stop Made Longer by Uncooperative Suspect

If an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.18 But when the delay in ending a Terry stop is attributable to the evasive actions of a suspect, the police do not exceed the permissible duration of an investigatory stop.19

There is some support for detaining a suspect during a Terry stop to determine his identity and conduct a warrants check, for which the suspects’ identity is required.20 The officer may detain the driver as long as reasonably necessary to conduct these activities and to issue a warning or citation. 21

Court Allows Fingerprinting at Scene

The Supreme Court has specifically left open the option of detaining suspects, fingerprinting them at the scene, and attempting to identify them with their fingerprints or even getting a warrant on less than probable cause to take them to the police station and try to identify them.22 Clearly, this option is burdensome for officers and intrusive for suspects.

Nevertheless, it might be justified when identification of a suspect is reasonably related to the scope of the stop. For instance, if the suspect is stopped because he somewhat matches the description of a wanted person, but not to the extent that he can be arrested for the crime, and the police have fingerprints of the wanted person, it might be both worthwhile and permissible to either get a court order authorizing seizure on less than probable cause and take the suspect to the station and fingerprint him or keep him at the scene, fingerprint him, and compare the prints. Any delay in ending the Terry stop would be attributable to the suspect’s refusal to identify himself.

These options apply to a narrow set of facts, but there is support in the case law for dealing in this manner with suspects who refuse to identify themselves, who have not presented the officer with probable cause to arrest, and whose identity is reasonably related to the circumstances justifying the valid Terry stop.

Evidence Uncovered During a Stop

If during a Terry stop police discover that there exists a valid arrest warrant for the subject, the arrest would be unassailable. A person cannot claim that his person is the fruit of an illegal arrest and that he is therefore immune from prosecution.23

But evidence obtained during an illegal detention or frisk will be inadmissible.24 For instance, a Terry frisk is a search for contraband. If an officer goes into a suspect’s pocket and pulls out a wallet without probable cause to believe that there is contraband in the wallet or pocket, and contraband is found, the contraband is inadmissible.

If the officer uses the identification in the illegally obtained wallet to determine the subjects’ identity for purposes of a warrant check, and it is determined that there is a valid warrant, the arrest under warrant is good, but any evidence out of the wallet is inadmissible. The courts have not clarified the ramifications of an illegal search that results in the discovery of a warrant that leads to a valid arrest.

Verbal Identification or Requirement of Documentation?

In Hiibel the Court notes that the Nevada statute “apparently does not require him to produce a driver’s license or any other document.” In Kolender we learn that a law requiring “documentary identification” may be unconstitutionally vague. One imagines, though, that a statute that specifies what documents are satisfactory would survive a vagueness challenge.

Still, the Supreme Court has never dealt squarely with the constitutionality of a state statute that requires production of documentary identification in an investigative detention or the legality of an arrest of a pedestrian for refusal to produce documentary identification. Obviously, if someone is operating a motor vehicle in a public area they can be required to produce the associated privilege license, which of course has the effect of identifying that person.

But what of suspects who are stopped but are not operating vehicles? Current law generally does not require that ordinary pedestrians even carry documentary identification and it remains to be seen what courts will do with the issues surrounding a requirement of documentary identification. Naturally, if someone is arrested, any documentary identification on that person can be located in the search incident to arrest. ■

Another impressive display by GM, (though some of the cases arguably can be distinguished on the facts)

The final post was quite on target, but still, the distinctions are so nuanced that I am left wondering exactly what the rules are that I can apply to my own behaviors. I have a gut sense that the law PARTICULARLY IN THIS SORT OF THING should be knowable. I have above average legal knowledge and even after reading GM's on point post, I still walk away with no clear idea as to the standard.

Like many Americans I have an instinctive aversion to having to produce papers; it reminds me too much of Terry's Casablanca clip wherein being subject to inspection by the police on their whim was exactly the sort of thing that meant they weren't "exceptional" like America-- so for all the logic of GM's posts, and it is considerable, on some gut level I continue to resist.

I'd think that you'd be a bit more sensitive to the trivialization of the horrors of the 3rd reich. Exactly what fate would one expect for someone who gave the slightest resistance or attitude to a nazi official? I'm pretty sure it would go far beyond a couple of citations.

Today's news includes this item: •Sami Ibrahim Isa Abdel Hadi, 39, was stopped for tailgating on Route 46 in Ridgefield Park, New Jersey. When a Bergen County police officer called in Abdel Hadi's North Carolina license plates, he learned that Abdel Hadi had been ordered deported to Brazil in December 2001 and is listed in the FBI's National Crime Information Center database. Even more interestingly, Abdel Hadi has a valid temporary I.D. from L & L Painting to paint the George Washington Bridge (a high-profile potential terrorist target).

Michael Wagner

Abdel Hadi is hardly the first actual or potential terrorist stopped due to a routine traffic infringement. •In July 2004, Michael Wagner's not wearing a seat belt got him stopped in a SUV near Council Bluffs, Iowa, that had in it "flight training manuals and a simulator, documents in Arabic, bulletproof vests and night-vision goggles, a night-vision scope for a rifle, a telescope, a 9mm semiautomatic pistol and hundreds of rounds of ammunition."

•Timothy McVeigh was stopped in April 1995 as he sped away from Oklahoma City bombing that killed 168 people and injured more than 500 because his car lacked a license plate.

•A New Jersey state trooper noticed Yu Kikumura's odd behavior at a New Jersey Turnpike rest stop in April 1988 and thoroughly searched his vehicle, finding three powerful homemade bombs. Kikumura, a member of the Japanese Red Army, was sentenced to thirty years in jail followed by deportation to Japan.

•Three members of the Syrian Social Nationalist Party (Walid Nicolas Kabbani, Georges Fouad Nicolas Younan, and Walid Majib Mourad) were stopped by Richford, Vermont's only policeman in October 1987, because he was suspicious of their movements. Indeed, they were smuggling a bomb from Canada to the United States.

Comments: (1) It is remarkable how many criminals, terrorist and otherwise, make elementary traffic mistakes. (2) There is no substitute for law enforcement on the ground. (3) If good luck brings in so many terrorist-related individuals, one has to wonder how many of them don't tailgate and do wear seatbelts. (4) I shall record other examples here as I become aware of them. (May 4, 2005) •Semi Osman was driving to Bly, Oregon, on Sep. 30, 1999, when the Oregon State Police stopped him because his car lights were not working, then cited him three more times for other infractions. One of these stops caught the attention of the FBI, which had lost track of Osman. He was subsequently arrested in 2002, accused of "material support for terrorists," plea-bargained, pleaded guilty to a weapons violation, and served his jail sentence. (October 4, 2005)

•"On a damp, gray day in March 2004, the Dutch traffic police stopped a Belgian driver for a broken headlight and accidentally stumbled onto a major investigation of Islamic radicals," write Elaine Sciolino and Hélène Fouquet in the New York Times, telling the story of Khalid Bouloudo, whose name "turned up on an Interpol watchlist, for an international arrest warrant from Morocco charging him with links to a Moroccan-based terrorist organization and involvement in suicide bombings in Casablanca in 2003. The random arrest set into motion a cascade of events that underscores the extent of the radicalization of young Muslims throughout Europe - and a rapidly expanding and home-grown terrorist threat." (October 9, 2005)

Nov. 12, 2005 update: Apparently, not everyone shares my appreciation for the benefits of routine traffic stops. The Staten Island Advance reports on a meeting between the borough's Muslim community and its police commander, Albert Girimonte, in which the former complained that in four incidents during the past 11 months,

cops investigating minor auto accidents or traffic infractions allegedly asked mosque members inappropriate questions about their citizenship status. "The typical question has been: 'Where are you from, where were you born?' … Two questions that are totally irrelevant at an accident scene."

In one of the incidents near the Staten Island Mall at Christmastime last year, a female Pakistani wearing a Muslim shawl repeatedly was asked where she came from, he said. "This is an educated woman," [the Muslim leader] said. "When a policeman first asked her where she was from, she told him Staten Island. Then he asked her where she was born. She told him Pakistan." There were other incidents in the spring, he said, including the case of a girl caught crossing against a traffic light in New Springville being questioned.

For his part, Girimonte agreed that the interrogation was improper: "Asking a person at an accident scene where they're from is not necessary. Once your proper ID is confirmed, all you want to find out is what happened." He acknowledged being "surprised" by the incidents and promised that traffic stops would not lead to questions about citizenship status. "This is basically a training issue. And we'll address it. The police should not be concerned with the citizenship status of motorists. That's not our bailiwick." •

Naveed Haq under arrest.

Tragic proof that Albert Girimonte is wrong and I am right came yesterday, when Naveed Afzal Haq was driving to the Jewish Federation of Greater Seattle building, where he proceeded to murder one person and severely injure five others. According to Seattle Police Chief Gil Kerlikowske, as paraphrased by the Associated Press, Haq had been "stopped shortly before the shootings in Seattle for a minor traffic infraction, and was cited and released. … Haq had a valid driver's license and his actions did not raise any suspicion." That traffic violation was driving down a buses-only lane. Comment: How many more murders will it take for the police to wake up to the danger of Sudden Jihad Syndrome? (July 30, 2006) Apr. 16, 2008 update: Police Officer Glen Cook gave testimony in Haq's trial, providing more details: Haq drove his white Mazda pickup north on Third Avenue at 3:37 p.m., a bus lane at that time of day, Cook pulled him over, took down Haq's license and proof of insurance, ticketed him, and let him go.

July 1, 2007 update: The July/August issue of the magazine Crime & Justice International features an article on pp. 4-12 by Dean C. Alexander and Terry Mors, "Best Practices in Identifying Terrorists During Traffic Stops and On Calls for Service." It discusses "how patrol officers can assist in identifying and capturing domestic and international terrorists while undertaking traditional duties, with particular emphasis on traffic stops and calls for service." The author's advice is summed up in a few words: "Police should go on the offensive and aggressively look for signs of terrorist activity or involvement." •The newspaper account does not tell why New Castle County, Delaware, police Officer Thomas Bruhn stopped the car of Amir Al-Kaabah, 21, and a female passenger shortly before 3 p.m. on Court Street near Brandywine Avenue in Claymont, but he stumbled on a minor treasury of criminality: 10 grams of marijuana, a large buck knife, fictitious registration tags, no title to the car, and an identity theft ring. The last became clear when he found expensive jewelry, clothing and shoes, all in their original wrapping in the trunk, all purchased with credit cards belonging to recent customers at the Comfort Inn in Birmingham Township, where the female passenger happened to work. Further inquiry found that Al-Kaabah is a fugitive from Georgia for violating his probation for a conviction of armed robbery, kidnapping and weapons violations. Al-Kaabah was charged with carrying a concealed deadly weapon, possession of a deadly weapon by a person prohibited, possession of marijuana, and driving while suspended. The woman was turned over to Pennsylvania authorities to face criminal charges. (December 18, 2007)

•Four men (Pratheepan Thambu, 22, Lojanand Srianandan, 27, both of Toronto, Sethukavalar Saravanabavan, 35, and Kirubakaran Selvanayagam Pillai, 38, both of London, U.K.) were riding in a rented van in Scarborough, Ont., on Jan. 28, when Constables Scott Aikman and Patrick Pelo watched them run a stop sign and pulled the van over. On looking inside, the officers noticed one of the four desperately hiding something. They also observed that the driver had been drinking, plus the presence of open liquor in the vehicle, giving them the right to search the vehicle, which they did. They found a number of plastic gift cards worth an estimated $250,000, with debit card information on the magnetic strip which police believe was stolen from UK bank customers.

Police later searched a hotel and a home and found another 88 cards, all with debit card data from British banks on their magnetic strips, as well as $25,000 in Canadian $20 bills, laptop computers and memory sticks, receipts for money transfers to the U.K., travel documents and passports and what detectives described as "Tamil Tiger paraphernalia."

The routine traffic stop quickly exposed an international debit card fraud ring, led to 373 criminal charges, and possibly broke up a Tamil Tiger terrorist fundraising and money laundering operation. Running a light is "not too smart a thing to do when you're driving a van full of stolen bank cards," Detective. Peter Trimble sagely observed. "And they had been drinking and had open liquor in the car, which also isn't very smart." (January 31, 2008) •Police in Matthews, N.C. stopped Sasan Ghazal, 21, of Bristol Ford Place in Charlotte, on suspicion of drunken driving on Feb. 9, and found an explosive device his vehicle. Under state law, Ghazal was charged with possession of a weapon of mass destruction, as well as possession of marijuana and drug paraphernalia. A U.S. Attorney will decide if federal charges are warranted. Ghazal is now in the Mecklenburg County Jail on a $101,500 bond. In 2006, he pleaded guilty of carrying a concealed gun and felony possession of drugs. (February 14, 2008)

•

Najibullah Zazi.

According to CBS News, the sequence of events that ended in the arrest of Najibullah Zazi on terrorism charges began with his being stopped for an unspecified "routine traffic violation" on his way into New York: "While entering the city, he was stopped by police for a routine traffic violation on the George Washington Bridge, which connects New Jersey and New York. Suspicious police allowed him to go free but kept a close watch on his movements." The same account, however, goes on to state that "Zazi told authorities he disposed of the explosives once arriving in New York," raising the possibility that the traffic stop may have backfired by alerting Zazi to the fact that he was already being watched by the FBI before this trip to New York. The full story is not clear here. (February 22, 2010)

•Swiss police report that a routine traffic-stop (for unspecified reasons) on April 15 at Langnau thwarted three eco-terrorists of Il Silvestre from blowing up the site of the £55 million nano-technology headquarters of IBM in Europe at Rueschlikon, near Zurich. The police stopped the two men and a woman a few miles from the target with an explosive device primed and ready to go off. (April 26, 2010)

•Pre-Olympic U.K. terror arrests: Police stopped a car on June 30 on a highway in Yorkshire, impounded it, suspecting it was uninsured. They discovered two firearms, ammunition, and other materiel, leading to the arrest of the driver, the passenger and five other male suspects between 22 and 43. (July 6, 2012)

•Jared Loughner killed six people and wounded 13 others, including Rep. Gabrielle Giffords, in Tucson, Arizona, on Jan. 8, 2011; it turns out, according to information buried in thousands of pages of just-released documents, that hours before his shooting rampage, he was stopped on a routine traffic matter. Arizona Game and Fish Officer Alen Forney saw Loughner driving in northern Tucson about 7:30 a.m. that day and stopped him for driving erratically and running a red light. Michael Mello recounts what happened for the Los Angeles Times:

When the officer approached the car, Loughner's hand was already thrust through the window, holding his license and registration. Forney said Loughner took off the black bandanna he was wearing. The officer saw that Loughner had a shaved head, something he thought was peculiar. He asked Loughner whether he knew why he had been stopped. He replied, yes, he did.

During the traffic stop, another Game and Fish officer drove by, asking whether Forney needed any help. "I gave her the thumbs up at that point," Forney told investigators. "I had no reason to believe anything suspicious was going on."

Forney said he didn't notice anything unusual inside the car, but had checked to make sure "the trunk was secure" on Loughner's '69 Chevrolet Nova. "I made the decision not to write a citation. Game and Fish doesn't write a lot of traffic citations … I was also in kind of a hurry" to join [a meeting with] other officers for their patrol at Florence Junction, east of the Phoenix metro area.

"I told him, 'I'm not going to write you a citation for this.' When I said that to him, his face got kind of screwed up and he started to cry.… That struck me as a little odd," Forney told investigators. "I asked him if he was OK. He said, 'Yeah, I'm OK. I've had a rough time and I really thought I was going to get a ticket and I'm really glad that you're not … going to give me a ticket."

Forney again asked Loughner whether he was OK, worried he would be driving with his emotions out of control, possibly leading to an accident. Loughner then immediately composed himself, he said. "He actually looked up at me and said, 'Can I thank you?' I said, 'Yeah, you can thank me.' He asked what my name was, and he stuck out his right hand."

(March 28, 2013)

• A routine traffic stop uncovered insurance problems which led to an arsenal of sawn-off shotguns, machetes, knives, samurai swords, elements for pipe bombs, and a nail bomb being found in a car. For details, click here. (April 30, 2013)

OK. Not arguing in what follows, just looking to explore where this leads.

Is it fair to say that we both know that as a practical matter an officer can make up a reason, before or after, for the stop? Thus as a practical matter does the standard become the police can demand ID of anyone at any time.

What if a person does not have ID with him? May he be searched for ID? Fingerprinted? Arrested?

OK. Not arguing in what follows, just looking to explore where this leads.

Is it fair to say that we both know that as a practical matter an officer can make up a reason, before or after, for the stop? Thus as a practical matter does the standard become the police can demand ID of anyone at any time.

What if a person does not have ID with him? May he be searched for ID? Fingerprinted? Arrested?

When police 'make up a reason', I think we all can agree justice is undermined.

Laws are different for operating a motor vehicle on a public street than for just existing, or being somewhere. I sometimes don't have ID when driving, even though it is required. When pulled over, they already know I match the photo and description of the person who owns the car, and they know my record, warrants, etc. Police are also doing more and more with 'shooting' license plates without a driving infraction to look for legal or criminal issues with the vehicle, owner or driver.

I would not carry a wallet for just walking and maybe just a credit card or a bill if I was planning to buy something on the walk. I wonder if facial recognition software will change the ID and fingerprint question of the innocent person looking suspicious to law enforcement. I assume that if you are out in public they believe they have the right to shoot security footage. Can't they run checks that way - soon if not now? Less intrusive in one way, but far worse perhaps in the potential for abuse.

There will always be a contention between the right to be left alone and a need for law enforcement to try to prevent things like a terror attacks before they occur. Crafty, how would you like to see that balance struck?

I'd like to get GM to flesh out his thoughts on this first. He is unusually well-informed, sometimes infuriatingly so, and has put thought into these issues. So, rather than be the fly whose wings he gleefully sears off with a magnifying glass like a sadistic little boy I'd rather get him define what he sees as the limits on police power in the context of American freedom.

A free society is difficult to police, and given the alternatives, that's the way I'd prefer it to be.

In the system envisioned by our founders, there should be a constant tension between public safety and personal freedom, with neither being absolute. No rational person wants to live in a police state. Nor should you want to live in a place without the rule of law. Laws are meaningless unless there is a tangible enforcement of them and real incentives and disincentives associated with individual conduct.

Would anyone look at the failed states on the planet as opportune places to live? Why do I not see big L Libertarians moving to Somalia to avoid America's so called "militarized police"?

If one were to examine the limitations on police power in western/english speaking nations, you'd find that American law enforcement has less authority and operates under greater scrutiny than any other nation. We have the only elected law enforcement executives in any country I'm aware of and the vast majority of law enforcement agencies in this country are under local control. Good or bad, the local agencies reflect their communities giving proof to Thomas Jefferson's line that the people get the government they deserve.

I'm pretty certain that only the US has legal firms specializing in litigating against law enforcement agencies or has a large insurance industry focused on insuring individual law enforcement officers against the full spectrum of potential legal jeopardy faced by officers in the US. Due to the massive liabilities associated with law enforcement in this country, the biggest obstacle for police supervisors and administrators is to motivate officers to navigate the real dangers of the job and the legal minefields while cultivating a positive relationship with the public they serve.

It's not easy, as I said before, nor should it be, but I see a deep vein of irrationality in the discussion of American policing today that in no way reflects the reality I know.

PAUL ROMER: Across the world, public safety is the most important task facing city governments. In many poor countries, crime holds back the kind of urbanization essential for economic development. Closer to home, Detroit shows us that if they can, people will flee a city that fails to provide basic public safety.

Cities with crime problems should be able to take advantage of what we have learned about the policing strategies that reduce crime. Unfortunately, they hear too often from academics and other opinion shapers who still seem to think that policing strategies can have no effect on crime rates. This perception is totally at odds with the new understanding that has emerged among people like you, who have been in the trenches, experimenting with new approaches, and bringing down crime.

WILLIAM BRATTON: Yes. In a democratic society, the Number One obligation of the government is public safety. And the criminal-justice system is the entity charged with that responsibility. The police, through their behavior, are entrusted to enforce the law. A key challenge is to do it constitutionally. You can’t break the law while enforcing it. And in the 1940s, 1950s, and 1960s, police were breaking the law quite a lot. So that’s why we ended up with a lot of constitutional guidelines for police activity.

ROMER: What was your experience with the changes that came after the 1960s, when we tried to bring policing in line with the protections of the Constitution? One of the reasons that so many people today seem not to understand the connection between policing and crime is that they do not remember, or perhaps never knew, how crime increased in the United States starting in the 1960s and then came back down in the 1990s.

BRATTON: I joined the Boston Police Department in 1970 and came to New York to take over the Transit Police in 1990. Those 20 years were a time of phenomenal change. We were in the midst of an extraordinarily unpopular war in Vietnam. We were in the midst of the civil rights movement. There was great social turbulence—the Democratic National Convention riots, the Kent State shootings. It was an incredible time in American history. That’s the world I came into, all 155 pounds of me. I had my six-shot revolver, my six spare rounds, a set of handcuffs, a pen, and a parking-ticket book. They didn’t even give me a radio. Just six weeks of training, and I was on the streets of Boston.

ROMER: Looking back, it is hard to believe that you received so little training. These days, we understand that policing is an extremely difficult, high-skill job. Now we expect that police will be well educated and well trained.

BRATTON: I was very fortunate because as part of a push toward professionalization, the federal government for the first time was paying for police officers to go to college. It was the best thing that ever happened to me because I didn’t get wrapped in the “blue cocoon” as I was beginning my career. The kids I ate with at the college cafeteria in the morning would be demonstrating against the war in front of the federal building in the afternoon. And I’d be there, too, on the other side of the lines in my blue suit.

ROMER: It seems to me that prior to the 1960s, police were powerful but were largely unaccountable to the public. They did keep crime in check but sometimes did so in ways that the public increasingly found unacceptable. One impetus for this change came from the civil rights movement, which highlighted the many ways in which local governments and local police mistreated people of color. In response, we brought in controls to limit the abuse of police powers and pushed for better training for members of any police force.

BRATTON: I’ve spent my life in the police profession, and I’m proud of that. But I am also very cognizant of the profession’s limitations, its potential for abuse, and its potential negative impact. Policing has to be done compassionately and consistently. You cannot police differently in Harlem from the way you’re policing downtown. The same laws must apply. The same procedures must be employed. Certain areas at certain times may have more significant crime and require more police presence, or more assertiveness, but it has to be balanced. If an African-American or a recent immigrant—or anyone else, for that matter—can’t feel secure walking into a police station or up to a police officer to report a crime because of a fear that they’re not going to be treated well, then everything else that we promise is on a shaky foundation.

ROMER: When we first tried to limit the potential for abuse and professionalize policing, which were clearly important things for us to do, we may have gone too far and made it impossible for police to do what had historically been their primary job: preventing crime. Or perhaps it would be more accurate to say that we sent the message that police could get into trouble if they tried to anticipate and prevent crime, and we gave them a justification for simply waiting for crime to happen and then reacting to it. We developed a new theory about what caused crime—the so-called root causes—and a new view about what the job was for police. Because they could not change the social and economic factors that were thought to be the root causes of crime, the police could not be expected to prevent crime. All they could do, and all we expected them to do, was to clean up after it took place.

BRATTON: After the 1960s, as social movements evolved and America was changing, society felt that the role of the police also needed to change, to become more professional and better educated, in terms of forensics and training.

What changed in the 1990s—and I’m one of the principal advocates of it—was that the role of police became first and foremost about preventing crime. I’ve always embraced decentralization, empowering a local precinct commander to work with his or her community. In a city the size of New York, you can’t expect the police commissioner to be aware of what’s going on down, say, on West 3rd Street all the time. But the precinct commander there, through involvement with the community, should be aware of deteriorating conditions in the area and be able to address them. This approach allowed us to identify the problems that were creating fear, disorder, and, ultimately, crime. Given that the police have limited resources, the question then becomes: What do we prioritize? What do we focus our time on?

That was the purpose of the Compstat process that we developed in 1994 to track crime. We needed active intelligence so that we could rapidly respond to what it was telling us. But we also needed an environment where all the police commanders came together to talk about what was working and what wasn’t. And in that process, part of the effort was to reduce falsification. Because if you’re in there with all your peers, they’re going to detect very quickly when something’s wrong or doesn’t add up. We would do auditing, so if any precinct reported a percentage change in crime that was outside the standard variation for the rest of the department, it would be audited to find out what was really going on.

ROMER: Describe the changes that followed from this return in New York to the traditional view that the job of the police is to protect public safety by preventing crime.

BRATTON: Many New Yorkers are too young to understand what the city looked like when I got here in 1990—the graffiti, the decay, the crime, the social disorder. The police were not expected to do anything about these quality-of-life issues—aggressive begging, encampments in every park. When I came in as police commissioner, almost 300 people were living in the park across the street from the UN. At the time, we didn’t focus on that, though. There was a perception that the police really couldn’t do anything about that kind of disorder. We thought that we were focused on serious crime. What we really didn’t understand until the late 1980s and early 1990s was that the victim of all the abhorrent behavior on the streets was the city itself.

To give you an idea of how things have changed: in 1990, I didn’t go anywhere without a gun because, as chief of the transit police, I did not feel secure anywhere, including in the subways. In Los Angeles, when I was chief of police there, I also had to carry a gun everywhere, because of the gang violence. I don’t carry a gun now. I haven’t for a while. It’s locked away. I just don’t feel the need for it. And I like it that I can do that.

ROMER: One of the misleading conclusions that outsiders seem to have reached is that police cannot deter a person from committing a crime, so the only thing they can do is find people more likely to commit crimes and incapacitate them, lock them up, and throw away the key. I know that you reject this kind of naive, “get tough” approach to crime. One of the dramatic but rarely noticed successes of the turnaround in policing that you started in New York is that the incarceration rate has fallen. A smaller fraction of the population is locked away, yet far fewer crimes are being committed. This points clearly to the possibility, even the likelihood, that with the right policies, we can prevent crime. We can deter people from committing crimes.

Those same people who look at policing from the outside sometimes describe community policing as the misguided alternative to the “get tough” policies that they support. You have always believed that to prevent or deter crime, police must have a good working relationship with the community—that this is as important in preventing acts of terrorism as it is in preventing street crime.

BRATTON: Seventy-five percent of the terrorist plots that have been disrupted since 9/11 were detected when a community member informed a police officer or when a police officer who had a relationship with the community was able to put the clues together to predict that something was going to happen and take steps to prevent it. So the collaboration that is so essential to successful policing really requires the community to be able to trust that what the police are doing is, in fact, not illegal and not based on racial profiling or targeting the Muslim community. Proactive, assertive policing is effective, but if you don’t have the legitimacy and the trust of the community, you’re not going to get the information that you need to predict and prevent crimes.

ROMER: This same strategy is as important in the fight against gang crime as it is in the fight against terrorism. When you took over as chief of police in Los Angeles, it was clear to everyone that the police did not have a good working relationship with the community, especially with the minority community. Developing a better working relationship with the community was crucial to the turnaround that you implemented there, one that may have been even more difficult than the turnaround in New York (see “The LAPD Remade,” Winter 2013).

One hallmark of New York’s turnaround was a greater reliance on data. In Los Angeles, did you have a way to get frequent updates on how public attitudes toward the police were changing, something that you could use as you used Compstat in New York—as a management tool to see if the officers out on patrol were bringing about the needed changes?

BRATTON: Well, we really had to rely on polling done by entities such as the Los Angeles Times and other institutions.

ROMER: This seems to be an area in which technology should be able to help. Ideally, a police chief should have as much detailed geographical data about the relationship between the police and the community as he has about crimes committed. Do you see other ways that technology and new data sources could change policing?

BRATTON: Through the algorithms being developed by a number of universities, we now have an increasing ability to predict where a crime will occur. It doesn’t mean that we can know exactly when it will happen and exactly what it will be, but we can say that, within a certain time frame, within a certain geographic area, if we don’t put resources in there—meaning, a police officer—there’s going to be a crime committed. So you’ll hear this term “predictive policing” a lot more often, going forward. It will require computing power and intelligence-analysis capabilities. This means real-time crime centers outfitted with the latest technology. That costs money, and, as you well know, money is tight these days.

ROMER: What about new ways for police and the community to communicate? How can you let members of the community know what the police are doing and why they are doing it?

BRATTON: The police have historically had to rely on the media. Sometimes you had to go through them to get to the public—and, not only to get to the public, but to get to the cops as well, because cops read papers. They watch television. Their families watch television. So you needed to use the media. The media hated it when we said that we “used” them, but you had to make yourself available to them. Sometimes it was painful to make yourself available, but you had to do it to get certain messages through.

But now we have Twitter. Now we have all these social media sites. Think about what happened with the Boston Marathon bombing. The news media are erroneously reporting information. Someone puts up pictures of people who weren’t involved and says, “Here are the bombers.” Someone else reports that the bombers have been arrested. It’s all wrong. So what do you do? Well, now the Boston P.D. can instantly put out a Tweet saying, “No arrest has been made. The two individuals identified in the newspaper story are not who we’re looking for.” And that’s that. It’s irrefutable and reaches thousands or tens of thousands of people and then gets amplified through the traditional media.

ROMER: Let me ask you one last question, which is, in a sense, a management question. How can you effectively manage an organization in which a very few bad apples can make headlines for abusing their power and do enormous harm to the legitimacy of the entire force?

BRATTON: A police official once said to me that the NYPD employs more than 38,000 “career assassins”—the idea being that any one of the police officers in New York can, at any time, through inappropriate or criminal behavior, effectively bring about a catastrophe for the whole department. All you have to do is think of the actions of Justin Volpe—the officer who brutalized Abner Louima—to appreciate how fragile public confidence in the police can be. This is particularly true in minority communities. The way you deal with that problem is to make it clearly known that the department does the best it can to recruit, train, and supervise its officers. You have to send a message that those officers who go astray will be disciplined. You have to be honest and transparent at all times.

William J. Bratton is once again New York City Police Commissioner. He has formerly served as Boston police commissioner and chief of police in Los Angeles. His conversation with Paul Romer was hosted by the NYU Stern Urbanization Project and NYU’s Marron Institute.

Paul Romer is a University Professor at New York University and founding director of the Urbanization Project at the Stern School of Business.

A PBT (Preliminary Breath Tester) isn't the same as a Brethalyzer used for a forensically admisssable analysis. The PBT can be used for part of roadsides but it's reading alone isn't admissable as they are more prone to error where as the one you'd find at the local PD/SO is calibrated and is admissable in court.

There are other smaller details that are debatable. The biggest thing is don't be stupid or confrontational. Follow the orders given. If you politely clarify things, like "Am I free to leave?" to establish your status, that's fine.

I didn't see any glaring errors. I'll look it over in more detail and report back.

Under "Never" it says "Never Answer Questions"

This is written from a defense attorney's point of view to a future client. Whatever the accused said is on the record and won't go away. I would just add, on the other hand, there are times with law enforcement where you might want to be helpful.

Late night police stops around here for minor infractions, tail light, rolling stops, etc. are aimed at finding something else, drunk drivers in particular. IF you have had nothing to drink and have nothing else to hide, being cooperative seems like a better strategy than saying I don't have t answer that. Not consent to a search, but to answer their questions hopefully shows your sobriety quickly so they can get on with their next stop.

I had one encounter with law enforcement that comes to mind; it was not a police stop but a criminal investigation of sorts. I was leaving my office to meet with the Mpls Fire Chief about an apartment building fire when my insurance adjuster warned me on the phone that as owner of the building with an insurance policy in force, I was their first suspect. I was shocked; that is ridiculous! I was a thousand miles away when it happened and I can prove it. Then I thought through that excuse and realized that sounded exactly the same as the alibi they would hear if I had arranged the fire. So I got focused on being extremely helpful and forthcoming in helping them solve the crime. With my keys I got them into units where the tenants would not let him in. Answering everything and then some sure seemed like a better strategy than acting guilty, but only I knew I was innocent and that no evidence could be discovered that would point to me. (Now I self-insure.)

Law enforcement isn't out looking for innocent people to jam up. Those who actually do the majority of police work are a small number of the officers being paid to work, depending on the agency.

If you are actually trying to catch real bad guys, it's like sales. It's about numbers. If you stop John or Jane Q. Citizen, you can quickly find they are not a problem and cut them loose.

You are looking for the guy who starts out explaining why he doesn't have ID and he borrowed the car from a friend who doesn't have a last name and an unknown address. Or the driver who slurs their words and has a strong odor of an unknown alcoholic beverage on their breath and person.

If you look at statistics, the biggest thing you can do to save lives as a patrol officer is take drunk drivers off the road.